Can People in Cities Govern Directly? Not Sure, but I’m Skeptical States Should Decide

If you live in Seattle, or have visited lately, as I did last May, it is hard to ignore the depth of the crisis of the unhoused that the city and the larger metro King County metro area face. I don’t purport to know the right answer—my instincts tend toward a housing-first approach, and toward reforms to foster more production of housing, all things being equal. But the crisis prompted a fight over amending Seattle’s charter, resolved this past week when King County Superior Court Judge Catherine Shaffer struck a proposed ballot initiative from this coming fall’s election, that raises the question whether the city or the state should decide about the scope of local direct democracy, a question playing out in a number of cities at the moment.


The proposed Charter Amendment 29 initiative was the work of an organization called Compassion Seattle, formed and funded by the Downtown Seattle Association and local chambers of commerce. Among other changes, Amendment 29 would have enshrined in the City Charter an obligation to prioritize services to those unhoused in Seattle, mandated the production of 2,000 units of service-oriented housing within a year (in a city that currently produces about 10,000 units of new housing overall), empowered the city to waive land-use requirements on an emergency basis to speed the construction of new housing, and authorized sweeps of encampments. The proposed initiative drew a challenge from the Seattle/King County Coalition on Homelessness, the ACLU of Washington, and the Transit Riders Union, with the ACLU arguing that the initiative would “enshrine Seattle’s current ineffective and harmful practice of sweeping unhoused residents and their homes from public places into the City’s Charter, while doing nothing to meaningfully address homelessness.”


In her August 30th ruling, Judge Shaffer called on a long-standing body of law in Washington State that essentially holds that if the state has delegated any local power to a specific local governing institution—such as a city council—that power cannot be exercised by initiative. As Judge Shaffer noted, the Washington Supreme Court has held that “the people cannot deprive the city legislative authority of the power to do what the constitution and/or a state statute specifically permit it to do.” Applying this principle, Judge Shaffer found that the proposed initiative would interfere the Seattle City Council’s power over land use and zoning, budgeting, planning for people who are unhoused, and a variety of matters that the City Council had moved into the administrative, rather than legislative, realm, most notably cooperation with King County through an inter-local agreement.


For “first class” cities such as Seattle, the Washington Constitution authorizes direct democracy and the state legislature has, in turn, provided in Revised Code of Washington § 35.22.200 that – with a little emphasis added:


The legislative powers of a charter city shall be vested in a mayor and a city council, to consist of such number of members and to have such powers as may be provided for in its charter. The charter may provide for direct legislation by the people through the initiative and referendum upon any matter within the scope of the powers, functions, or duties of the city.


Now, whatever one thinks about direct democracy—and there are very good reasons to be skeptical, especially in land use matters—this conflict, and other charter fights playing out in places like Detroit, where the Governor of Michigan tried, but failed, to block a proposed new City Charter, only to have the voters strongly reject the proposal, highlight a recurring problem of state-local relations. If there is an area of local authority that would seem most, well, local, it would seem to be the internal organization of governance, as reflected in the local constitution that is the city charter. One can certainly make the case that there are externalities to who decides what within a city, but only because one can make a case that there are externalities to almost everything local. That’s why an externalities-or-not filter on the scope of local power is seemingly simple in principle but very hard to operationalize and if one accepts the filter, the internal organization of city governance—as opposed to any substantive policy that might emerge from that governance—is surely local. And the body of Washington state law that limits direct democracy seems drawn by implication from the basic fact of state delegations, despite the broad proviso that cities can choose direct democracy on “any matter” within the power of the city, which means that courts are implying significant limitations on the choice that people in cities, through their charters, have to decide that an area of policy needs the intervention of the voters

.

Again, I’m not sure if the Compassion Seattle charter amendment would have advanced meaningful solutions to the crisis the city and its people are facing, and I’m very sympathetic to the argument that it would have enshrined the criminalization of being unhoused (certainly one hopes that an overall rational local plan to respond to the crisis would be in place - not so clear that's the case at the moment). But isn’t that a debate that should have been had locally and not taken off the table based on the structural shadow of state law? Or, at least, shouldn’t the state have had to have been much clearer and more intentional in reaching down and structuring the institutions of local governance given the general delegation of organizational power, at least for charter cities? I would hope so.